People v. Brown

2019 IL App (4th) 160941-U

Opinion

2019 IL App (4th) 160941-U NOTICE FILED This order was filed under Supreme November 4, 2019 Court Rule 23 and may not be cited NO. 4-16-0941 Carla Bender as precedent by any party except in the limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County ALLEN BROWN JR., ) No. 11CF1145 Defendant-Appellant. ) ) Honorable ) Robert Freitag, ) Judge Presiding. ______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Holder White and Justice Knecht concurred in the judgment.

ORDER

¶1 Held: The trial court’s summary dismissal of defendant’s postconviction petition was proper where the court applied the correct standard of review and defendant failed to attach to his petition his mental health records or allege what relevant information they contained.

¶2 In December of 2016, the trial court entered an order summarily dismissing

defendant’s petition for postconviction relief. On appeal, defendant argues the court applied an

incorrect legal standard in reviewing his claim of ineffective assistance of counsel as set forth in

his postconviction petition. We disagree and affirm the court’s judgment.

¶3 I. BACKGROUND

¶4 On January 11, 2012, the State charged defendant, Allen Brown Jr., by indictment

with two counts of armed robbery (720 ILCS 5/18-2(a) (West 2010)) and one count of aggravated

battery (720 ILCS 5/12-3.05(f)(1) (West 2010)) stemming from a robbery at a Casey’s General Store in Bloomington, Illinois, on December 30, 2011.

¶5 At a status hearing on March 7, 2012, defense counsel filed a motion requesting the

appointment of Dr. Terry M. Killian as an expert to determine both defendant’s fitness to stand

trial and his sanity at the time of the alleged offense.

¶6 Dr. Killian evaluated defendant at the McLean County jail on March 18, 2012, and

again on September 25, 2012. Prior to his interviews with defendant, Dr. Killian reviewed

documents provided by defense counsel, including mental health records from the year 2000 and

from the years 2009-2012. Some of these records were from the Edgewater Mental Health System

in Indiana and had been provided to defense counsel by defendant’s mother.

¶7 After his second evaluation of defendant, Dr. Killian concluded that defendant was

malingering his psychiatric symptoms. However, he also concluded that defendant might be

suffering from bipolar mood disorder and post-traumatic stress disorder and that defendant was

probably suffering from antisocial personality disorder.

¶8 During defendant’s fitness hearing on October 5, 2012, Dr. Killian testified that

defendant was fit to stand trial and, at the time of the robbery of the Casey’s General Store, was

not suffering from any type of mental illness.

¶9 At the fitness hearing, defendant indicated to the trial court that defense counsel

would not permit defendant to assert certain defenses. In response, defense counsel stated he told

defendant that it would not be possible to pursue an insanity defense “without a psychiatric

examination that makes that kind of finding.”

¶ 10 On October 18, 2012, at the final pretrial hearing, defendant informed the trial court

that defense counsel had failed to “subpoena [his] psychiatric records” and that defendant had

-2- “given [defense counsel] places to get it, and he still haven’t [sic] done it.” In response, defense

counsel repeated that defendant could not “present or argue the insanity defense when the expert

has said he was not insane at the time.”

¶ 11 Just prior to trial, on October 23, 2012, defendant requested a continuance because

he was attempting to hire an expert witness to present “an affirmative insanity defense. Or is it

guilty but mentally ill?” The trial court denied defendant’s motion because Dr. Killian had already

expressed an opinion on the issue of defendant’s sanity.

¶ 12 A jury found defendant guilty of all charges on October 25, 2012. During his trial,

defendant did not assert an insanity defense, nor was his mental state ever mentioned.

¶ 13 On November 28, 2012, the trial court sentenced defendant to 80 years in the

Illinois Department of Corrections.

¶ 14 On direct appeal, defendant asserted that: (1) the trial court violated his

constitutional right to self-representation; (2) the State failed to prove him guilty of armed robbery

beyond a reasonable doubt as charged; (3) the sentences for armed robbery violated Apprendi v.

New Jersey, 530 U.S. 466 (2000); (4) his conviction and sentence for aggravated battery violated

the one-act, one-crime doctrine; (5) the trial court erred in sentencing him to an extended term for

aggravated battery; and (6) the 80-year sentence was excessive. People v. Brown, 2015 IL App

(4th) 130192-U, ¶ 3. This court rejected all of defendant’s claims except for the claim that the trial

court erred in sentencing him to an extended term for aggravated battery. Id. ¶ 84. Defendant’s

sentence was reduced to 75 years. Id. ¶ 87.

¶ 15 On September 15, 2016, defendant pro se filed a postconviction petition under the

Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2014). In his petition,

-3- defendant alleged: (1) he had been denied his right to proceed pro se; (2) he received ineffective

assistance of counsel because counsel failed to adequately investigate defendant’s ability to plead

guilty but mentally ill or assert the defense of insanity by not obtaining defendant’s mental health

records from the Indiana Department of Corrections; (3) he received ineffective assistance of

counsel because counsel provided Dr. Killian with incomplete records from Edgewater Mental

Health Systems without defendant’s consent; (4) the trial court erred in not allowing defense

counsel to withdraw; (5) he received ineffective assistance of counsel because counsel failed to

allow defendant to review tangible evidence; (6) he received ineffective assistance of counsel

because counsel failed to interview all of the witnesses on the list provided to defense counsel by

defendant; (7) he received ineffective assistance of counsel because counsel failed to call character

witnesses at his sentencing; (8) he received ineffective assistance of counsel because counsel

forced defendant to present an alibi defense instead of allowing defendant to proceed with an

insanity defense; (9) the prosecuting attorney “kidnapped him from the county jail;” and (10) the

trial court erred in finding defendant fit for trial based on Dr. Killian’s first report. Defendant did

not attach to his postconviction petition any affidavits or records supporting his allegations. He did

allege that he could not provide proof of any of his allegations because his “record was destroyed

in an institutional shakedown so [he] is unable to alight to where in the record the issues are.”

¶ 16 In a written order entered on December 5, 2016, the trial court dismissed

defendant’s postconviction petition in its entirety. In its order, the trial court noted defendant’s

claim that defense counsel failed to adequately investigate defendant’s ability to plead guilty but

mentally ill or to assert the defense of insanity was not “supported by any allegations as to what

relevant information these records would have provided to counsel to support a defense of mental

-4- illness.” The court determined that, by failing to allege what the records would have contained,

defendant failed to “plead sufficient facts to present the ‘gist’ of a valid constitutional claim” and

that, as a result, defendant’s claim was “merely a bald, conclusory allegation.” The court also

found that “[p]etitioner’s failure to provide the records he claims counsel should have obtained, or

to at the least provide some factual assertions as to their relevance to support his claim *** defeats

his claim.”

¶ 17 In rejecting defendant’s claim that defense counsel shared with Dr. Killian

incomplete mental health records from the Edgewater Mental Health System without defendant’s

consent, the trial court noted that “[t]he petition is devoid of any facts supporting petitioner’s

contention that the fact counsel obtained these records was somehow legally deficient performance

and prejudicial to the petitioner.” The court reiterated that “bald, conclusory allegations, such as

this will not prevail on post-conviction review.” The court rejected defendant’s remaining

postconviction claims.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, defendant argues the trial court applied an incorrect legal standard in

reviewing his claim of ineffective assistance of counsel, as set forth in his postconviction petition.

As stated, defendant alleged in his postconviction petition that he was denied effective assistance

of counsel when his defense counsel failed to “investigate a defense of ‘insanity or guilty but

mentally ill’ by not obtaining his mental health records from his, at the time, ‘most recent

providers: Indiana Department of Corrections’ ” and where defense counsel “release[ed] partial

records to Dr. Killian for a psychological examination of [defendant].” Defendant contends the

-5- court failed to evaluate whether defendant sufficiently alleged counsel was arguably ineffective in

his representation, and instead “applied a stricter Strickland standard in evaluating [defendant’s]

allegations of ineffective assistance of counsel at the first stage of postconviction proceedings.”

Defendant makes no argument as to the other claims alleged in his postconviction petition.

¶ 21 “Under the [Act], individuals convicted of criminal offenses may challenge their

convictions on grounds of constitutional violations.” People v. Domagala, 2013 IL 113688, ¶ 32,

987 N.E.2d 767 (citing 725 ILCS 5/122-1 et seq. (West 2010)). A postconviction petition must

“have attached thereto affidavits, records, or other evidence supporting its allegations or shall state

why the same are not attached.” 725 ILCS 5/122-2 (West 2014). “The failure to comply with

section 122-2 is fatal and by itself justifies the petition’s summary dismissal.” People v. Harris,

224 Ill. 2d 115, 126, 862 N.E.2d 960, 967 (2007). The purpose of this requirement is to allow the

trial court to corroborate a petitioner’s allegations with independent or objective facts. People v.

Hodges, 234 Ill. 2d 1, 10, 912 N.E.2d 1204, 1208 (2009).

¶ 22 The threshold for a petition’s survival at the first stage of postconviction

proceedings is low as most petitions are drafted by defendants with little legal knowledge or

training. Id. at 9. Therefore, the petitioner must only plead the “gist” of a constitutional claim.

People v. Allen, 2015 IL 113135, ¶ 24, 32 N.E.3d 615. The “use of the term ‘gist’ describes what

the defendant must allege at the first stage; it is not the legal standard used by the circuit court to

evaluate the petition, under section 122-2.1 of the Act ***.” Hodges, 234 Ill. 2d at 11.

¶ 23 At the first stage of postconviction proceedings, the legal standard used by the trial

court in evaluating the petition is, whether the petition is “ ‘frivolous or *** patently without

merit.’ ” Domagala, 2013 IL 113688, ¶ 32 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2010)). “[A]

-6- pro se petition seeking postconviction relief under the Act for a denial of constitutional rights may

be summarily dismissed as frivolous or patently without merit only if the petition has no arguable

basis either in law or in fact.” Hodges, 234 Ill. 2d at 11-12.

¶ 24 To prevail on a claim of ineffective assistance of counsel, defendant must show

both that counsel’s performance “fell below an objective standard of reasonableness” and that the

deficient performance prejudiced the performance. Strickland v. Washington, 466 U.S. 668, 687-

88 (1984). At the first stage of postconviction proceedings, the standard set forth in Strickland is

attenuated somewhat to take into account the “frivolous or patently without merit” test. During the

first stage, a postconviction petition need only show that “(i) it is arguable that counsel’s

performance fell below an objective standard of reasonableness and (ii) it is arguable that the

defendant was prejudiced.” (Emphases added.) Hodges, 234 Ill. 2d at 17.

¶ 25 A trial court’s first-stage dismissal of a defendant’s postconviction petition is

reviewed de novo. People v. Wright, 2013 IL App. (4th) 110822, ¶ 23, 987 N.E.2d 1051. We may

affirm a court’s dismissal on any grounds substantiated by the record, regardless of the court’s

reasoning. People v. Snow, 2012 IL App (4th) 110415, ¶ 17, 964 N.E.2d 1139.

¶ 26 Relevant to the present matter, the trial court’s order stated that, in reviewing a

postconviction petition at the first stage, a court must “determine whether the petition presents the

gist of a constitutional claim” and dismiss the petition if it is “frivolous or patently without merit.”

The court’s order also states that, in reviewing defendant’s ineffective assistance of counsel claim,

the “court follows the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687 (1984).

Under this standard, petitioner must show that counsel’s representation fell below an objective

standard of reasonableness and that, but for this deficiency, there is a reasonable probability that

-7- counsel’s performance was prejudicial the defense.”

¶ 27 Contrary to defendant’s argument, it does not appear that the trial court utilized an

improper standard in dismissing defendant’s postconviction petition. Although the court cited to

Strickland rather than to Hodges, the court did not suggest defendant had failed to establish that

counsel was actually ineffective as opposed to arguably ineffective. Rather, in its analysis the

court correctly noted that a defendant’s postconviction petition must simply “present[ ] the gist of

a constitutional claim.” Thus, we find the court applied the correct legal standard.

¶ 28 As stated, the trial court found that defendant’s allegation defense counsel failed to

investigate a plea of guilty but mentally ill or the defense of insanity by failing to obtain

defendant’s mental health records failed to satisfy the “gist” standard because defendant failed to

attach the mental health records to his petition or allege “what relevant information these records

would have provided to counsel to support a defense of mental illness.” The court also rejected

defendant’s allegation that defense counsel provided Dr. Killian with only partial records because

the petition “is devoid of any facts supporting petitioner’s contention that the fact counsel obtained

these records was somehow legally deficient performance and prejudicial to the petitioner.”

¶ 29 As an initial matter, we find defendant’s conclusory allegations were insufficient

to present the gist of a constitutional claim of ineffectiveness of counsel. In his petition, defendant

failed to explain what the subject mental health records would have revealed or their relevance to

any issue in his case. Defendant simply complained that counsel had failed to obtain all of his

mental health records. Such conclusory allegations of ineffectiveness are insufficient to survive

first-stage postconviction review. See People v. Delton, 227 Ill. 2d 247, 258, 882 N.E.2d 516, 522

(2008) (“[B]road conclusory allegation[s] of ineffective assistance of counsel *** are not allowed

-8- under the Act.”).

¶ 30 Moreover, as noted above, the Act requires that the petition include “affidavits,

records, or other evidence supporting its allegations or shall state why the same are not attached”

(725 ILCS 5/122-2 (West 2014)) and the failure to comply with this obligation is “fatal and by

itself justifies the petition’s summary dismissal.” Harris, 224 Ill. 2d at 126.

¶ 31 Here, defendant did not attach to his petition the mental health records that are the

basis of his ineffective assistance of counsel claim, nor did he attach an affidavit or other evidence

explaining their relevance. Defendant’s postconviction petition concludes with the statement that

his “record was destroyed in an institutional shakedown so [he] is unable to alight to where in the

record the issues are.” This does not satisfy the requirements of Section 122-2. As an initial matter,

it is not apparent whether the “record” defendant refers to includes his mental health records or

whether he is simply referring to a record of his legal case. Even assuming the “record” referenced

by defendant included his mental health records, defendant does not explain why he could not

obtain additional copies of these documents to attach to his petition. Nothing in the record or in

defendant’s postconviction petition suggests that he ever attempted to obtain the “missing” mental

health records, nor does he allege that he was unable to obtain them.

¶ 32 Without the medical records or pertinent affidavits that would support defendant’s

allegations of ineffective assistance of counsel, defendant is unable to establish that the

“allegations are capable of objective or independent corroboration.” See Hodges, 234 Ill. 2d at 10.

Therefore, we find the trial court’s first stage dismissal of defendant’s postconviction petition was

proper.

¶ 33 III. CONCLUSION

-9- ¶ 34 For the reasons stated, we affirm the trial court’s summary dismissal of defendant’s

postconviction petition.

¶ 35 Affirmed.

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